Citation Nr: 1455745
Decision Date: 12/18/14 Archive Date: 12/24/14
DOCKET NO. 12-21 916 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
THE ISSUES
1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with generalized anxiety disorder.
2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
INTRODUCTION
The Veteran had active service from January 1967 to September 1970.
Initially, the Veteran's appeal came before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the claim for service connection for an anxiety disorder.
Following the Board's May 2011 Remand, service connection for PTSD was granted by an August 2011 rating decision, and the Veteran appealed the initial 30 percent evaluation assigned for PTSD at the time of the grant of service connection.
The Veteran's electronic (Virtual VA) file was reviewed in preparation for this decision, as well as the printed, physical claims files.
During the pendency of this appeal, the Veteran sought service connection for several disabilities. The record before the Board does not reflect that the Veteran has disagreed with any aspect of the rating decisions related to these claims.
The Veteran testified before the undersigned at a December 2013 Board Videoconference hearing. He submitted additional evidence at that hearing, and waved his right to consideration of that evidence by the RO prior to Board consideration. Appellate review may proceed.
FINDINGS OF FACT
1. Providers and examiners who evaluated the Veteran during the period from 2006 through August 3, 2010 noted symptoms primarily of anxiety, depression, and difficulty dealing with stress, but no episodes of more severe symptoms, and consistently assigned GAF scores of 60.
2. The clinical evidence from August 3, 2010, to the present, presents a complex l picture, with providers and examiners assigning GAF scores ranging from 40 to 73.
3. The preponderance of the evidence from August 3, 2010, reflects primarily moderate PTSD symptoms resulting in reduced reliability and productivity, deficiencies in short-term memory, near-continuous depression, and occasional impairment of impulse control, but not deficiencies in verbal communication, inability to perform activities of daily living, more than moderate impairment of judgment or thinking, or more serious symptoms.
4. The Veteran's service-connected disabilities preclude all but part-time sedentary work in a quiet, stress-free environment which does not require interactions with co-workers or the public, and those limitations effectively preclude all forms of substantially gainful employment for which the Veteran's education and occupational experience would otherwise qualify him.
CONCLUSIONS OF LAW
1. The criteria for an increased initial evaluation from 30 percent to 50 percent, but no higher rating, for PTSD with depression, are met from August 3, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411 (2014).
2. The criteria for TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1.
Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007), Fenderson v. West, 12 Vet. App. 119 (1999).
1. Claim for increased rating for PTSD
Historically, the Veteran sought service connection for an acquired psychiatric disorder, to include anxiety or PTSD, in 2006. Service connection was granted in an August 2011 rating decision, and an initial 30 percent evaluation was assigned. The Veteran disagreed with the initial evaluation, and raised a claim for TDIU.
A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411.
To demonstrate entitlement to a 70 percent evaluation, the evidence must show deficiencies in most areas and such symptoms as suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene.
A total (100 percent) rating is warranted for total social and industrial impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting self or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for one's own occupation or own name.
Global Assessment of Functioning (GAF) scores are scaled ratings reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders 32 (4th ed.) (DSM-IV). VA's Rating Schedule employs nomenclature based upon the DSM-IV, which includes the GAF scale. See 38 C.F.R. § 4.130.
A GAF score from 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning. In such cases, the Veteran is generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms. While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001).
Findings and analysis
The Veteran sought VA outpatient mental health care in May 2006. He reported anxiety and irritability. Providers who treated the Veteran in May 2006, August 2006, September 2006, October 2006, and July 2007 assigned GAF scores of 60. The Veteran reported, in May 2007, that he worked at the post office as an expediter/dispatcher of trucks. He reported that it was very difficult to deal with the personalities of the drivers. He said there were a lot of "grouchy people." He reported that the "buzzing about" and gossip bothered. He felt that he had lost the ability to socialize. He exercised to manage his stress. The examiner concluded that the Veteran's anxiety was exacerbated by the Iraq War and by stress on the job.
The Veteran reported, in August 2007, that he had made a decision to retire soon. He was isolated. The provider concluded that the Veteran's life "has been significantly impacted by the anxiety generated by having been in a war zone." The Veteran discontinued medication after a short time because of side effects. Treatment notes in January 2008 reflect that the Veteran was using exercise, cognitive behavioral therapy, and stress reduction techniques to decrease his anxiety and depression.
In April 2008, the Veteran retired. Initially, he reported decreased anxiety, stress, and depression, but his coping techniques became less effective, in part because orthopedic problems reduced his ability to exercise. In 2009, the Veteran agreed to try medication again to reduce his anxiety and depression. The Veteran began working part-time for a neighbor's small company, primarily delivering the product. He reported less discomfort interacting with others and reported overall improvement, but was still symptomatic, with anxiety. The providers also assessed that the medication might be related to the Veteran's complaints of tiredness and fogginess.
In April 2010, the Veteran reported that he was not interested in his usual activities, wanted to isolate himself, and was feeling unenthusiastic about things he loved before. He felt that the sertraline, which had helped before, was no longer working. The provider assigned a GAF score of 61.
The providers during this period almost uniformly assigned GAF scores of 60 or 61. As noted above, GAF scores from 61 to 70 reflect some mild symptoms, or some difficulty in social, occupational, or school functioning. The clinical evidence establishes that the Veteran felt he was not financially ready to retire, but felt he had to leave because of the stress. There is no indication, however, that the Veteran was being pressured to leave or faced any disciplinary action, even though the Veteran reported that he sometimes "lost it" and would yell at work. The Veteran completed more than 30 years of work at the Post Office.
The Board finds that the evidence, including the length of the Veteran's employment, the statements of the providers, and the Veteran's statements, present a picture of an individual who had occasional decreases in work efficiency and intermittent periods of reduced occupational reliability, but generally functioning fairly well, consistent with the criteria for a 30 percent evaluation. The Veteran certainly displayed or reported disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships, but the evidence includes no objective findings or symptoms of short-term or long-term memory loss, impairment of the ability to communicate verbally, such as circumlocutory, circumstantial, or stereotyped speech, unprovoked irritability with periods of violence, or other symptoms associated with occupational impairment.
The Veteran continued to function independently at home and in his part-time job; there is no evidence that other family members helped him with activities of daily living or were required to assist him with household chores or transportation generally, other than at times such as following his knee replacement surgery. Although some items of evidence are consistent with a 50 percent evaluation, the evidence as a whole during this period reflects that the Veteran's impairment due to PTSD was consistent with the 30 percent initial evaluation assigned. Some of the Veteran's own statements regarding how he was working on this problem provide highly probative evidence against this claim.
The records from August 3, 2010 to the present reflect an increase in the severity of the Veteran's symptoms. An August 3, 2010 VA outpatient treatment note reflects that the Veteran reported that he had a "new boss" at his part-time job. He was not sure they would get along. He reported that he could not cope with the "stress," and might have to quit the job. The provider noted that the Veteran was "having continued difficulty with motivation and functioning." The Veteran's medication regimen was adjusted. The provider assigned a GAF Score of 59. In January 2011, the Veteran reported some improvement, and a GAF score of 62 was assigned, but in April 2011, the provider decreased the GAF score to 60, and noted that the Veteran had left his part-time job.
The Veteran was afforded VA examination in June 2011. The Veteran presented as agitated. He did not make eye contact at first. He expressed "a great deal of anger," and reported that he did feel that the therapy and medication helped him control his anger. The examiner noted the Veteran's history of continuous mental health treatment since 2006. The examiner assigned a GAF score of 55, and concluded that the Veteran's PTSD and anxiety disorders were related to his service. The examiner opined that the Veteran's symptoms and functioning were in the moderate range.
Outpatient treatment notes dated in June 2011 reflect that the treating provider, who had seen the Veteran on several occasions, noted an increase in symptoms, especially as to irritability and loss of control. The Veteran reported an "incident" with a neighbor. The provider assigned a GAF score of 50. The same provider assigned a slightly higher GAF score, 52, in August 2011. November 2011 evaluation revealed that the Veteran continued to report chronically poor sleep, racing thoughts, variable nightmares, restless leg syndrome, and reported that he startled easily. The provider again assigned a GAF score of 52.
The provider who evaluated the Veteran in February 2012 stated that the Veteran showed little indication of acute risk of harm to himself or others, but was frustrated with the treatment he was obtaining at VA. A GAF score of 57 was assigned.
The Veteran submitted a private evaluation conducted in March 2012 and April 2012 by TA, PhD. Dr. TA conducted psychometric testing, including the Beck Anxiety Inventory, the Beck Depression Inventory, the Babcock Story Recall Test, and conducted mental status testing and testing designed to elicit the severity of PTSD symptoms. The objective testing showed that the Veteran's short-term memory was poor. He recalled only six of 21 story elements on Immediate Recall testing, and, more significantly to the provider, after hearing the story a second time, his Delayed Recall performance deteriorated. The Veteran described obsessive thought processes and compulsions. He scored in the severe range of anxiety on the Beck Anxiety Inventory. Dr. TA concluded that the Veteran had significant depression, passive suicidal ideation, compulsive behaviors, extreme anxiety, impairment of concentration and memory, and significant isolation and numbing. Dr. TA assigned a GAF score of 40.
At VA outpatient treatment in May 2012, the Veteran reported that he had "gotten drunk" and put his hand through a window. When police arrived, they tasered the Veteran twice to get him under control. His primary care physician had advised the Veteran to taper down on his psychiatric medication because of his other health issues, and the Veteran discontinued the medication, without consulting his mental health providers. The Veteran reported his belief that discontinuing the medication may have affected his behavior, as the incident occurred shortly after the medication discontinuance. The provider did not assign a GAF score, but did refer the Veteran to the Justice Outreach Coordinator.
On VA examination in July 2012, the examiner described the Veteran's symptoms as including anxiety, irritability, avoidance, re-experiencing, and reactivity due to PTSD, low mood and poor motivation due to depression, and poor concentration and insomnia due to both disorders. The examiner concluded that the Veteran had moderate symptoms, moderate occupational impairment, and met the criteria for a GAF score of 55. The examiner assigned a diagnosis of PTSD, depressive disorder secondary to PTSD, and alcohol abuse, in early partial remission.
At his December 2013 Videoconference Board hearing, the Veteran testified that he seldom left his house except to the grocery store, to the gym, or to walk his dog. He testified that he had difficulty interacting with members of the public and groups of people, even his own family members.
The Veteran also provided private treatment records dated in May 2013 through October 2013. The private provider determined that, although the medication reduced some symptoms, the Veteran was somewhat sedated, and the medication regimen was changed. In October 2013 the provider noted that there was significant improvement in the Veteran's symptoms and the Veteran reported that he felt more motivated and energetic. The provider assigned a GAF score of 73.
The evidence establishes that a decline in the Veteran's functioning, slight at first, but more clearly noted over the following two years, was first noted in August 2010 VA outpatient clinical records. At that time, the Veteran found even part-time employment that he had previously enjoyed too stressful to continue. In 2011, the Veteran complained of increasingly-severe inability to read and concentrate. Although the Veteran denied use of more than a couple of drinks two or three times a week, the police were required to respond to a call from a family member in 2012, apparently related to the Veteran's use of alcohol. The Board notes that, generally during this time, most of the Veteran's GAF scores ranged from 59 to 52.
Resolving any reasonable doubt in the Veteran's favor, the Board finds that an initial 50 percent evaluation is warranted for the symptoms underlying those GAF scores.
The examiner who conducted detailed psychometric testing in March 2012 and April 2012 assigned a lower GAF score, 40, than any other provider. That GAF score was assigned just a few weeks before the incident when the police were called. VA providers assigned GAF scores of 50 around the time of that incident.
The Board finds that, if the GAF score of 40 was accurate at the time it was assigned, that period of increased symptomatology was brief. The Veteran returned to a moderate level of PTSD symptoms within a short time, and the higher level of severity of symptoms was not sustained, so continuation of the 50 percent evaluation during this period is warranted, but not a higher evaluation. The Veteran's PTSD has not prevented him from seeking appropriate care and does not prevent him from establishing relationships with providers as necessary to obtain care. The Veteran has been able to understand and comply with instructions regarding health care.
The private provider who treated the Veteran in 2013, in the months just prior to his December 2013 hearing before the Board, assigned a much higher GAF scare, a GAF score of 73. The treatment notes from that provider do not include detailed psychometric testing, and do not reflect consideration of alcohol use or the Veteran's apparent legal difficulties in 2012. As moderate symptoms preponderated during this period, and it is not shown that the Veteran's improvement in symptomatology was sustained, the Board finds that a 50 percent evaluation during this period is warranted, from August 3, 2010, based on all records, not simply one or two pieces of evidence that would provide evidence (in isolation) against this finding, or may provide evidence in support of a higher rating than 50%. This will be addressed below.
The Board must next consider whether the Veteran is entitled to an initial rating in excess of 50 percent for any period since August 3, 2010. While the Veteran clearly has problems associated with his PTSD, and the credibility of his testimony is not in dispute. These reported and observed problems are the basis for the 50 percent evaluation granted for his PTSD in this decision, from August 2010.
A noted above, one GAF score as low as 40 was assigned in 2012. However, while that examiner described the Veteran's symptoms as including "significant depression, passive suicidal ideation, compulsive behaviors, and extreme anxiety," as well as "worry about being able to maintain a simple standard of living," that examiner did not describe impairment of verbal communication, illogical speech, grossly inappropriate behavior, delusions, hallucinations, or inability to perform activities of daily living, although the Veteran did report occasional episodes of road rage or "rages."
Although the Board has considered the assigned GAF score of 40, it finds that the Veteran's symptoms overall are consistent with the criteria for a 50 percent evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). The Veteran described periods where he is less careful about his personal appearance and hygiene at times, but there is no evidence that he is unable to maintain at least minimal socially-acceptable grooming and hygiene. The Veteran does not contend that he is unable to function independently. The Veteran does not meet the criteria for a 70 percent evaluation or a total evaluation for PTSD at any time during the period relevant to this appeal.
The Board has considered whether referral for consideration of an extraschedular evaluation in excess of 50 percent for PTSD is required. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 211 (2008). If the schedular evaluation is inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the disability picture reveals other related factors such as marked interference with employment or frequent periods of hospitalization. Then, if the rating schedule is inadequate to evaluate the Veteran's disability picture, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id.
In this case, the Veteran's service-connected PTSD has never necessitated a period of hospitalization, and the Veteran does not currently seek treatment for PTSD (which the Board understands). There is no objective evidence or subjective testimony that establishes the presence of symptoms not addressed in the schedular criteria. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). No referral to the RO for consideration of an extraschedular rating in excess of 50 percent for PTSD with depression is required. 38 C.F.R. § 3.321(b)(1).
Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). In this case, there is no evidence or testimony identifying additional factors of service-connected disability that have not been attributed to a specific service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
2. Claim for TDIU
Currently, the Veteran has been granted service connection for: PTSD, currently evaluated as 50 percent disabling; residuals, left total knee replacement, evaluated as 30 percent disabling; osteoarthritis, right knee, evaluated as 10 percent disabling; chronic low back strain, evaluated as 10 percent disabling; dyspepsia with hypertrophic duodenitis, evaluated as 10 percent disabling; osteoarthritis, left ankle, evaluated as 10 percent disabling; coronary artery disease, evaluated as 10 percent disabling; and, residuals of scars, evaluated as noncompensable. Thus, prior to the decision above, in which the Board grants an increased evaluation for PTSD, the Veteran had a combined total disability evaluation for all service-connected disabilities of 100 percent from December 2008 through February 1, 2010, an 80 percent rating from February 1, 2010, through November 1, 2010, and a 70 percent evaluation from November 1, 2010, to the present.
The Veteran has met the criteria for an award of TDIU on a schedular basis from December 30, 2008, without consideration of the increased evaluation addressed in the decision above.
A Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the level of education, special training, and previous work experience in making this determination, but not to the Veteran's age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326 (1991).
In this case, the Veteran's post-service employment experience is limited essentially to his work at the US Postal Service for more than 30 years. Following his retirement from the US Postal Service, the Veteran worked about 15 hours per week for a company delivering water test kits to home repair stores, but the Veteran left that employment because he was unable to continue the interactions with others required to coordinate dropping off the equipment.
The Veteran did not, at least technically, leave either of his last two employment positions as a result of his service-connected disabilities. However, since his retirement, the Veteran has been granted service connection for additional orthopedic disabilities. He underwent service-connected left knee total replacement in 2009. He has manifested increasing symptoms of a service-connected back disability. It would be very difficult for the Veteran to obtain or maintain employment comparable to his Postal Service employment, or any manual labor or employment which required him to lift or carry heavy objects more than a short distance, or involved significant walking or standing.
The Veteran's PTSD prevents him from performing employment which requires significant interaction with co-workers or the public. The record, in fact, provides significant evidence that the Veteran's inability to cope with stress at work and interactions with others played a substantial role in his decision to retire from the Postal Service even though he felt he was not economically ready for retirement.
The provider who conducted VA examination in August 2012 concluded that the Veteran would be able to perform part-time sedentary desk-type work in a quiet environment with allowances for stretching and position changes. The Board finds it significant that the VA examiner concluded that the Veteran could perform sedentary work, in a quiet environment, with allowance for stretching and position changes, but only on a part-time basis.
The Veteran did complete some post-service employment training for a business or administrative position in the mid-1970s, and was an accounting clerk for slightly less than a year, ending in 1977, when he began working for the US Postal Service. The Veteran has not held sedentary employment since 1977, and has no educational background or experience which would assist him to qualify for such employment at this time. The combination of his service connected problems, as whole, would make full time work highly unlikely in the case of Veteran who, from the record, clearly wants to work.
The Veteran's education and experience do not provide a basis for substantially gainful part-time employment that would not require interaction with others but would meet the medical criteria for employment established by the examiner who conducted the August 2012 VA examination.
Therefore, the Board finds that the Veteran is unable to obtain or retain a substantially gainful occupation due to his service-connected disabilities. He meets the criteria for an award of TDIU. The effective date of this award to be determined by the RO in the first instance.
As the Board's decision with respect to the claim for TDIU is favorable to the Veteran, no additional notice or development is required.
Duties to notify and assist
The Veteran was advised of the criteria for each level of disability several times throughout the process of this appeal. The Veteran has not raised any contention that additional notice is required. The appellant bears the burden of demonstrating any prejudice from defective notice. Goodwin v. Peake, 22 Vet. App. 128 (2008). That Veteran does not contend that there was any defect in the notice, and the Board finds no defect.
The Veteran was afforded relevant VA examinations in 2008, 2010, and 2012. The Veteran testified before the Board in August 2014. The record specifically establishes that the Veteran is not receiving private or VA mental health treatment, so there is no indication that additional records which might be relevant are available.
The Veteran has not submitted or identified any other relevant evidence. The duties to notify and assist have been met.
ORDER
From August 3, 2010, an increased initial evaluation from 30 percent to 50 percent for PTSD is granted, subject to law and regulations governing the effective date of an award of compensation.
The appeal for TDIU is granted.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs